Citation NR: 9713811
Decision Date: 04/24/97 Archive Date: 05/01/97
DOCKET NO. 94-33 886 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA)
Regional Office in Pittsburgh, Pennsylvania
THE ISSUES
1. Entitlement to service connection for residuals of frozen
feet.
2. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
3. Entitlement to service connection for defective hearing.
4. Entitlement to service connection for tinnitus.
5. Entitlement to service connection for residuals of a
traumatic injury to the head.
6. Entitlement to service connection for disability
resulting from a retained shell fragment in the left eye.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
E. Artman, Counsel
INTRODUCTION
The veteran served on active duty in the United States Army
from December 1952 to October 1954.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating actions of March 1992, April
1992 and January 1994, of the Pittsburgh, Pennsylvania,
Regional Office (RO). In March 1992, an original claim of
service connection for residuals of frozen feet was denied.
This decision was confirmed and continued in April 1992. In
January 1994, claims of service connection for PTSD; for
defective hearing; for tinnitus; for residuals of a traumatic
injury to the head; and for disability resulting from a
retained shell fragment in the left eye, were denied.
The veteran presented testimony regarding his claim of
service connection for residuals of frozen feet at a hearing
conducted in August 1992. The hearing officer confirmed the
denial of his claim in September 1992. The veteran presented
testimony regarding his other claims on appeal in April 1995.
This hearing officer denied the claims in a June 1995
decision.
Argument received from the veteran in August 1995 suggests
that he would like to pursue a claim of service connection
for a nerve disorder of the right wrist and hand. This issue
is referred to the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran has contended that he received a head injury
during combat service in Korea due to his close proximity to
an exploding shell. He asserts that he was knocked
unconscious by this shell, that he received shell fragment
wounds to the face and head, and that he was transported to a
MASH unit for treatment. He asserts that he was at a
hospital facility for approximately one week and that, during
this time, he was told that he had a metal fragment in his
left eye which could not be removed. He contends that he
should be granted service connection for disability resulting
from this retained metal fragment.
(See the remand section of this decision for action on the
other claims on appeal.)
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
a well-grounded claim of service connection for disability
resulting from a retained shell fragment in the left eye.
FINDING OF FACT
The medical evidence of record shows that the veteran does
not have a foreign body in his left eye and does not suggest
that he has any other disability resulting from a shell
fragment injury to that eye.
CONCLUSION OF LAW
A well-grounded claim of service connection for disability
resulting from a retained shell fragment in the left eye, has
not been submitted. 38 U.S.C.A. §§ 1110, 5107, 7104 (West
1991 & Supp. 1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran has stated that he first arrived in Korea in the
spring of 1953 and that he served under combat conditions
during the spring and summer of the year. Following that
initial period, he was assigned to guard duty. He asserts
that, during the initial combat period, he received a
traumatic injury to the head and face due to an exploding
shell. He asserts that the shell knocked him unconscious;
that he was hospitalized for approximately one week following
the injury; and that he was told that he had a metal fragment
in his left eye which could not be removed. The record
suggests that he continues to believe that a fragment is
embedded in his eye. The veteran seeks service connection
for disability resulting from this retained fragment.
Unfortunately, the veteran's service medical records were
destroyed by the 1973 fire at the National Personnel Records
Center (NPRC). Thus, these records are not available for
corroboration of the veteran's contentions. Nevertheless,
the veteran's eyes were examined in August 1993, at which
time no abnormalities of the left eye could be detected.
Slit-lamp evaluation showed a normal anterior chamber,
cornea, lens and lid. It was noted that no signs of a
scleral foreign body, as described by the veteran, could be
seen. A dilated-fundus evaluation revealed normal macula,
vessels, periphery and discs. X-ray studies, performed the
following month, confirmed that there were no foreign bodies
present in either eye.
Thus, the veteran has not presented medical evidence of a
current disability resulting from a shell fragment injury to
the eye. (The August 1993 report does show that the veteran
has decreased vision in his left eye, but it indicates no
relationship between loss of vision and a previous eye
injury, and the veteran has not asserted such.) Given the
incomplete record, the Board does not attempt to refute that
an inservice injury to the eye took place. However, the
present record does establish that there is no metal fragment
in the veteran's eye at this time and does not disclose any
resulting disability of any such injury to that eye.
Therefore, the veteran's claim is denied on the basis that it
is not well-grounded. A well-grounded claim includes a
medical diagnosis of a current disability. Caluza v. Brown,
7 Vet.App. 498, 506 (1995); Grottveit v. Brown, 5 Vet.App. 91
(1993). The veteran has the obligation to submit a well-
grounded claim, which typically triggers a duty to assist the
veteran in the development of facts of his claim by VA.
Grottveit; 38 U.S.C.A. § 5107(a) (West 1991). The duty may
also be triggered by the absence of records in the claims
file which are within the control of the federal government.
Cf. Counts v. Brown, 6 Vet.App. 473 (1994); Ivey v.
Derwinski, 2 Vet.App. 320 (1992). However, the Board finds
that no duty is triggered in this instance because, even if
service records could be obtained which showed that the
veteran incurred an injury to his eye, they would not serve
to establish that he has current disability resulting from
such an injury.
ORDER
The veteran's appeal of service connection for disability
resulting from a retained foreign body in the left eye is
denied because a well-grounded claim of service connection
has not been submitted.
REMAND
The veteran contends that, in addition to a shell fragment
being blown into his left eye, he sustained a concussion and
damage to his hearing from the shell which exploded near him.
He asserts that he currently suffers from hearing loss and
tinnitus; that he has suffered with it since the time of
injury in Korea; and that he should be granted service
connection for these two conditions. He has also asked for
service connection for residuals of a concussion. It is
unclear from the record what the nature of these residuals
is.
The veteran claims that he suffers from PTSD as a result of
his service in Korea. He was diagnosed as having mild-to-
moderate, chronic PTSD by a VA examiner in September 1993.
The report of the September 1993 examination outlines the
stressor events claimed by the veteran; they include an
incident where he was sent to retrieve the body of a fellow
soldier from the front lines. Again, this is asserted to
have occurred during the veteran's brief period of duty in
Korea.
Finally, the veteran asserts that he suffers from residuals
of frozen feet as a result of his service in Korea. He says
that his feet froze one night when he was on guard duty. He
complained at his August 1992 hearing of almost constant
ulceration of his feet, and a burning and aching in his
ankles and feet. There is no medical evidence of record
which addresses the condition of the veteran's feet.
A review of the record suggests that there are copies of
private treatment records that might substantiate the
veteran's assertions if associated with his claims file. The
review also shows that, despite several requests issued to
the NPRC, the RO has yet to provide that agency with a copy
of the veteran's separation document, as the NPRC has
requested in its replies. The Board further finds that, in
light of the absence of service medical records, a VA
examination of claimed physical disabilities should be
performed in order to document a history of the disabilities
and their current status.
Therefore, this claim is REMANDED so that the following
actions may take place:
1. The RO should contact the veteran in
order to obtain authorization for receipt
of copies of private treatment reports.
In particular, the RO should attempt to
obtain copies of all treatment reports
from. Robert Monsour, M.D. It should
also attempt to obtain copies of
treatment reports from physicians from
whom the veteran has received treatment
for anxiety, PTSD, or for his foot
problems. The veteran should be asked to
submit documentation of the receipt of a
combat infantry badge, if this
documentation is in his possession. He
should also be asked to provide as much
detail as possible regarding stressful
events experienced during service,
including dates, places, and names of
individuals involved, etc. All
information received by the RO should be
promptly associated with the veteran's
claims file.
2. The RO should contact the NPRC in a
effort to obtain copies of any service
personnel or medical records which may be
on file with that agency. It is
imperative that the request for these
records include a copy of the veteran's
DD Form 214.
3. The RO should forward any information
obtained from the NPRC to the United
States Army and Joint Services
Environmental Support Group (ESG), along
with an outline of the veteran's claimed
stressors (contained within the September
1993 VA psychiatric evaluation report),
and any new information provided by the
veteran. The ESG should be asked to
provide any evidence which may
corroborate the stressor events claimed
by the veteran.
4. The RO should arrange for the veteran
to be given a VA general medical
examination, in order to ascertain the
nature of residuals of any inservice
traumatic injury to the head and of
residuals of frozen feet. The examiner
should elicit a complete history from the
veteran regarding the initial injuries
and their residual
effects over the years. Clinical
findings should be provided regarding
current residual disability. To this
end, all specialized testing should be
completed as deemed necessary.
5. The RO should arrange for the veteran
to have a VA audiology and ear
examination. An opinion should be
provided by the examining audiologist
regarding the probability that hearing
loss or tinnitus is due to inservice
acoustic trauma.
6. Based upon the evidence obtained
pursuant to the development sought above,
the RO should take all indicated
adjudicatory action. If any of the
benefits sought by the veteran are not
granted, a supplemental statement of the
case should be issued.
After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case, the claims file should be returned to this Board for
further appellate review. No action is required by the
veteran until he receives further notice. The purpose of this
REMAND is to procure clarifying data and to comply with
governing adjudicative procedures. The Board intimates no
opinion, either legal or factual, as to the disposition of
this appeal.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
MARK F. HALSEY
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual acting member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
- 2 -